Delhi High Court
Suresh Chand Jain vs Rakesh Singh on 7 March, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: March 07, 2017
+ MAC.APP. 269/2008
SURESH CHAND JAIN ..... Appellant
Through: Mr. D.D. Singh and Mr. Navdeep
Singh, Advocates
Versus
RAKESH SINGH .....Respondent
Through: Mr. Pradeep Gaur, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% ORAL
Impugned Award of 8th February, 2008 grants compensation of
`4,72,600/- with interest @ 7% per annum on account of death of one
businessman-Yogesh Chand Jain, aged 23 years, in a road accident on the
intervening night of 30th June and 1st July, 2005. The facts are already
noted in impugned Award and so needs no reproduction. Suffice to note
that deceased - a shop-keeper, was engaged in business of selling
garments at Pahari Dheeraj. To assess the income of deceased, learned
Tribunal has relied upon Income Tax Return (Ex.PW-5/3), which is of a
period prior to his death, and on its basis, the income of deceased has
been quantified to be `73,200/- per annum. Pertinently, the Income Tax
Return filed after the death of deceased has been left out of consideration.
While taking the age of claimant to be 52 years and 48 years respectively
and by applying the multiplier of 11 and deducting 50% towards
'personal expenses', 'loss of dependency' has been assessed by learned
Tribunal at `4,02,600/-. Under the non-pecuniary heads, `10,000/- has
been awarded towards 'funeral expenses', `40,000/- towards 'loss of love
and affection' and `20,000/- towards 'loss of estate'. On the basis of
evidence recorded, impugned Award has been rendered.
In this appeal, enhancement of compensation is sought by learned
counsel for appellant while relying upon Supreme Court's decision in
Munna Lal Jain and Another v. Vipin Kumar Sharma and Others, (2015)
6 SCC 347 to submit that the multiplier to be adopted is as per the age of
deceased and not as per the age of claimants and that learned Tribunal has
erred in not applying the appropriate multiplier of 18 while taking the age
of deceased into consideration.
It is pointed out by appellant's counsel that the Income Tax
Returns filed after the accident ought to have been considered and
adequate compensation ought to have been granted towards 'future
prospects'. It is also submitted by appellant's counsel that compensation
granted under the non-pecuniary heads is on lower side and it needs to be
suitably enhanced.
On the other hand, learned counsel for respondent-Insurer supports
impugned Award and submits that no case for enhancement is made out
as the age of claimants has been rightly taken into consideration. To
submit so, attention of this Court is drawn to a Three Judge Bench
decisions of Supreme Court in UPSRTC v. Trilok Chandra & Ors., 1994
(3) SCC 302 and New India Assurance Company Limited v. Shanti
Pathak (Smt.) & Ors., (2007) 10 SCC 603. Nothing else is urged by either
side.
Upon hearing and on perusal of impugned Award, evidence on
record and the decisions cited, I find that Supreme Court in Trilok
Chandra (supra) and Shanti Pathak (supra) has reiterated that age of
claimants or the age of the deceased, whichever is higher, is to be taken
into consideration while applying the appropriate multiplier whereas in a
later decision of same strength in Munna Lal (supra) while considering
an earlier decision in Reshma Kumari & Ors. v. Madan Mohan & Anr.
(2013) 9 SCC 65, it has been ruled that multiplier ought to be in reference
to the age of deceased.
When there is conflict of opinion between two Benches of same
strength, then the decision of earlier Bench has to prevail. It has been so
reiterated by Supreme Court in Union of India v. S.K. Kapoor, (2011) 4
SCC 589. So, while relying upon Supreme Court's earlier decisions in
Trilok Chandra (supra) and Shanti Pathak (supra), this Court has no
hesitation in holding that learned Tribunal has rightly taken into
consideration the age of claimants. It is noted in impugned Award that as
per Election I-card, age of mother of deceased comes to 44 years and 7
months, or say, 45 years. However, learned Tribunal, while relying upon
statement of Insurer's counsel, has taken the age of mother of deceased to
be 50 years. It needs no reiteration that it is the mother of deceased, who
is a dependent and not the father of deceased. While relying upon
Election I-card of mother of deceased, her age is to be taken as 45 years
and appropriate multiplier as per Sarla Verma (Smt.) and Others v. Delhi
Transport Corporation and Another (2009) 6 SCC 121 is of 14. Learned
Tribunal has erred in applying the multiplier of 11. By applying the
multiplier of 14, 'loss of dependency' is reassessed as `36,600/- X 14 =
`5,12,400/-.
The submission of appellant's counsel to claim 'future prospects'
is noted to be rejected, for the reason that deceased was self-employed
and there is solitary Income Tax Return of a period prior to the accident.
Had there been Income Tax Returns of three years preceding the accident,
then the aspect of 'future prospects' could have been considered. Learned
Tribunal has rightly not granted any compensation under the head of
'future prospects'.
So far as compensation granted under the non-pecuniary head is
concerned, this Court finds that it is on lower side. Supreme Court in
Rajesh & Ors. V. Rajbir Singh & Ors. (2013) 9 SCC 54 has granted
compensation of `1 lac under the head of 'pain and sufferings' and under
the head of 'loss of love and affection', compensation granted is also of
`1 lac and the funeral expenses granted are of `25,000/-. While relying
upon Supreme Court's decision in Rajesh (supra), compensation granted
under the heads of 'love and affection' is enhanced from `40,000/- to `1
lac and the 'funeral expenses' are increased from `10,000/- to `25,000/-.
The compensation granted under the head of 'loss of estate' is also
enhanced from `20,000/- to `50,000/-.
In view of aforesaid, compensation granted to claimants is
reassessed as under: -
1. Loss of dependency ` 5,12,400/-
2. Loss of love and affection ` 1,00,000/-
3. Loss of estate ` 50,000/-
4. Funeral expenses ` 25,000/-
Total ` 6,87,400/-
In the light of a recent decision of Supreme Court in Shivakumar
M. v. The Managing Director, BMTC, 2017 SCC Online SC 148, the
interest granted on the awarded compensation is enhanced from 7% to
9% per annum.
In light of the aforesaid, compensation awarded is enhanced from
`4,72,600/- to `6,87,400/-. The enhanced compensation shall carry
interest @ 9% per annum from the date of filing of the claim petition till
the date of deposit of the enhanced amount. Respondent-Insurer is
granted four weeks time to deposit the enhanced compensation of
`2,14,800/- with interest @ 9% per annum and differential interest on the
entire awarded amount with learned Tribunal, who shall ensure that the
enhanced compensation is directly transmitted into the bank account of
appellant-Claimant upon his furnishing bank account details.
This appeal is disposed of while modifying the impugned Award
in aforesaid terms.
(SUNIL GAUR)
JUDGE
MARCH 07, 2017
s
